Terms and Conditions
These ITOCHU Techno-Solutions America, Inc. (“ITA”) On Demand Support Services for Fluentd Standard Terms and Conditions (“T&C”) shall apply to all quotations, orders, statement of work, agreements and contracts for any Service as defined in this T&C and purchased or received by any and all customers or recipients (collectively, the “Customer”) from ITA. This T&C together with any Order Forms executed by ITA and Customer shall be collectively referred to as this “Agreement.”
1. DEFINITIONS
“Documentation” means the instructions for Software usage, design and installation made available with the Software.
“Node” is defined as a Fluentd collection agent, to be counted per instance in which the Software is installed.
“Service(s)” means the Support Services, end user training service for the Software and/or Consulting Services.
“Fluentd” or “Software” means td-agent and td-agent-bit made available on www.fluentd.org and www.fluentbit.io.
“Term” means the duration from an incident submission to resolution.
“Support Service(s)” means the On Demand support services for the Software on an incident-basis provided by ITA to Customer under this Agreement.
2. APPLICATION OF THIS AGREEMENT
2.1 This Agreement sets forth the terms and conditions that will govern any Service pursuant to order forms executed by the parties which reference this Agreement (“Order Form”).
2.2 An Order Form is subject to acceptance by ITA. ITA shall use reasonable efforts to indicate its acceptance or rejection of any Order Form Customer submits, in whole or in part, within three (3) business days after its receipt.
2.3 In the event of a conflict between the terms and conditions of this T&C and an Order Form, the provisions of the Order Form shall prevail over this T&C. Any variation of the Order Form or this T&C shall be in writing and signed by or on behalf of the parties.
3. SUPPORT SERVICES
3.1 Provision of the Support Services. Subject to the terms of this Agreement, ITA shall, during the Term, provide Customer with the Support Services in accordance with Customer’s selected plan level as set in the applicable Order Form. Support Services may be used only to support the Software, but not otherwise. ITA reserves the right to suspend and/or terminate the Support Services and any associated Order Form, if it discovers that Support Services were used in support of any other software (as an example, Apache Hadoop)
3.2 Support Plan. ITA shall provide the Support Services in accordance with the service levels and support plan set in the applicable Order Form. All Support Services will be provided in the English language, unless otherwise agreed in the applicable Order Form.
3.3 Exclusions. Support Services do not cover problems caused by the following: (a) unusual external physical factors such as inclement weather conditions that cause electrical or electromagnetic stress or a failure of electric power, air conditioning or humidity control; neglect; misuse; operation of the Software with other media not in accordance with the Documentation; or causes other than ordinary use; (b) use of the Software that deviates from any operating procedures as specified in the Documentation; (c) Third party products or services; (d) use of the Software with unsupported plug-ins, tools, APIs, interfaces or data formats other than those included with the Software and supported as set forth in the Documentation (collectively, “Third Party Plug-In(s)”); (e) a failure by User to replace earlier versions of the Software. Customer may request assistance from ITA for such problems, for an additional fee. In the event that ITA suspects that a reported problem may be related to a Third Party Plug-in, ITA, may, in its sole discretion, request that the Third Party Plug-in be removed.
4. PAYMENT TERMS; BOOKS AND RECORDS; AND AUDIT
4.1 Fees. The service fees charged to Customer by ITA in consideration of the Services hereunder (“Service Fees”) will be designated in respective Order Form.
4.2 Payment term. All amounts payable by Customer to ITA under this Agreement are to be paid in U.S. dollars and Customer will pay invoiced amount within thirty (30) days after receipt of an invoice. ITA will issue an invoice once the incident is resolved, unless otherwise set forth in applicable Order Form. Except as expressly provided herein, all payment obligations are non-cancelable and all Service Fees and other amounts paid are non-refundable. ITA may assess a late charge if Customer does not pay the Service Fees on time. If Customer fails to pay the Service Fees in full and on time, except where the parties have a genuine, bona fide, good faith dispute regarding whether monies are in face owing, ITA may (i) charge the lesser of a half (0.5%) percent of the unpaid amount each month or the maximum rate permitted by law, and/or (ii) suspend the Service.
4.3 Taxes. Service Fees are exclusive of all taxes. Customer will be responsible for all taxes related to the Service Fees, excluding taxes based on ITA's net income.
5. PROPRIETARY RIGHTS
ITA and/or their suppliers retain all right, title and interest, in and to the Software, its trademarks, its Confidential Information, including all intellectual property rights therein. In no event will Customer contest or dispute such exclusive ownership rights in the foregoing. Other trademarks, service marks, and trade names that may be used on or in connection with the Software are the property of their respective owners. Customer will retain all right, title and interest, in and to Customer’s trademarks, and Customer’s Confidential Information, including all intellectual property rights therein.
6. CONFIDENTIALITY
6.1 Confidential Information. "Confidential Information" means any and all confidential or proprietary information and data of one party (the "Disclosing Party") disclosed to the other (the "Receiving Party") in connection with this Agreement, which is clearly marked or identified as confidential at the time of disclosure and reduced to writing and transmitted to Receiving Party within thirty (30) days of such disclosure if disclosed orally. For the purpose of this Agreement the Software, Documentation, and all other applications, tools, and technical information made available to Customer by ITA in connection with the Services will be deemed ITA’s Confidential Information. Confidential Information of each party includes this Agreement, as well as any Order Forms, Service Materials and all business and marketing plans, technology and technical information, product plans and designs, roadmaps, specifications, and other similar information disclosed by a Disclosing Party. Confidential Information does not include any information which: (a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party in breach of this Agreement; (b) was within the Receiving Party's possession prior to its disclosure to it by or on behalf of the Disclosing Party; (c) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party not under obligation to keep such information confidential; or (d) is developed independently by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
6.2 Protection of Confidential Information. The Receiving Party agrees to (a) protect the Confidential Information using the same degree of care that it uses to protect its own Confidential Information of like kind, but in no event less than reasonable care; (b) not to use the Confidential Information for any purpose outside of this Agreement; and (c) not to disclose the Confidential Information to any third party other than its contractors and agents who have a need to know and are bound by confidentiality obligations no less restrictive than this Agreement and Receiving Party shall be responsible to Disclosing Party for any act or omission of such contractors and agents in violation of any such confidentiality restrictions hereunder. In the event that a Receiving Party becomes legally compelled to disclose any Confidential Information provided pursuant to this Agreement, such Receiving Party shall provide the Disclosing Party with prompt written notice (to the extent it is legally permitted) so that such Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement.
7. WARRANTIES
7.1 Mutual Warranties. Each party represents and warrants to the other party that: (a) it has all authority to enter into this Agreement; and (b) its acceptance of this Agreement, and the performance by such party of its obligations and duties hereunder, do not and will not violate or conflict with any agreement to which such party is a party or by which it is otherwise bound.
7.2 ITA Warranties. ITA warrants that during the Term, the Services will be performed in a professional and workmanlike manner. Customer must timely and properly report any issues with the Support Services and/or Software to ITA so that ITA may have the opportunity to research and resolve such issues. For any breach of an above warranty, Customer’s sole and exclusive remedies are those set forth in Section 9.1 (Termination for Cause).
7.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN SECTION 7.2 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES THAT ITA MAY MAKE AVAILABLE DURING THE TERM. ITA DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT ITA IS PROVIDING SERVICES THAT ARE INTENDED ONLY TO ASSIST CUSTOMER IN OPERATING CUSTOMER’S OWN BUSINESS AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR (AND ITA ASSUMES NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) WITH RESPECT TO THE DECISIONS MADE BASED ON CUSTOMER’S USE OF THE SERVICES, OR ANY EFFECTS ON BUSINESS THAT MAY RESULT FROM SUCH USE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.”
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) IN NO EVENT WILL EITHER PARTY, AND ITS OFFICERS, EMPLOYEES, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY OR ITS OFFICERS, EMPLOYEES, OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE MAXIMUM LIABILITY OF EITHER PARTY, AND ITS OFFICERS, EMPLOYEES, AND SUPPLIERS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO ITA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
9. TERMINATION
9.1 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if (i) the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days from the date of written notice of breach by the non-breaching party, or (ii) the other party becomes subject to appointment of a trustee or receiver for all or any part of its assets, becomes insolvent or bankrupt, or makes any assignment for the benefit of creditors.
9.2 Survival. 4 (Payment Terms), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Limitation of Liability), 9 (Termination), 10 (Governing Law), 11 (Data Protection) and 12 (General) will survive the termination or expiration of this Agreement. Neither party shall be liable to the other party in the event of termination or expiration of this Agreement for compensation, reimbursement or damages on account of loss of prospective profits, or anticipated sales, or on account of expenditures, investments, leases or commitments in connection with the business or goodwill of the other party.
10. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement is to be construed in accordance with and governed by the laws of the State of California without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply, and is hereby expressly excluded. The parties shall negotiate in good faith to resolve all disputes, whether contractual or non-contractual and including any question regarding its existence, validity, or termination, in connection with this Agreement or the execution thereof. If the parties are unable to resolve any such dispute through good faith negotiations within a period of twenty (20) days, then the parties may refer such dispute for resolution by binding arbitration administered by the International Chamber of Commerce under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) then in force. The seat of the arbitration shall be California. The arbitration shall be conducted, and the award rendered, in the English language. Except as provided by this clause, the appointment and confirmation of the arbitrators shall be made in accordance with the relevant provisions of the ICC Rules. The arbitral tribunal shall be composed of three (3) arbitrators (the “Tribunal”) fluent in English. In the request for arbitration, the party requesting arbitration (the “Claimant”) shall appoint one arbitrator. The party named as respondent by the Claimant (the “Respondent”) shall appoint one arbitrator within thirty (30) days of the receipt of the request for arbitration. The two arbitrators appointed by the Claimant and Respondent shall together appoint the third arbitrator, who shall be the chairman of the Tribunal, by mutual agreement within 30 days of the nomination of the second arbitrator. The validity, construction, and interpretation of this agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant to this agreement to arbitrate, including but not limited to, the determination of the issues that are subject to arbitration (i.e., arbitrability), the scope of the arbitrable issues, and the rules governing the conduct of the arbitration shall be decided by the Tribunal provided that any such rules do not conflict with this clause or the ICC Rules. The Tribunal shall not decide the arbitration ex aqueo et bono or as amiable compositeur or by reliance on any other doctrine or principle that would permit the Tribunal to avoid the application of this Agreement and/or the governing law. Within twenty (20) days of the appointment of all of the arbitrators the parties will negotiate the scope of discovery (such as document production), if any, in good faith. Each party shall bear its own attorneys’ fees, costs and expenses of the arbitration and an equal share of the arbitrators’ and administrative fees of arbitration. Except as required by law, neither a party nor arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder or information provided in connection with such arbitration without the prior written consent of both parties. Notwithstanding this clause, either party may, without waiving any remedy under this Agreement, seek emergency interim or provisional relief, including but not limited to injunctive relief, from any judicial authority at any time, whether sought before a dispute is filed at arbitration or after a dispute is at arbitration.
11. DATA PROTECTION
Personal Data relating to Customers’ personnel (including but not limited to email addresses and IP addresses) may be made available to ITA and its subcontractors in connection with ITA’s performance of its Services under this Agreement (“Customer Personal Data”). For the purpose of this clause, “Personal Data” means any information relating to an identified or identifiable natural person.
Customer warrants that Customer has the right to provide Customer Personal Data to ITA and its subcontractors pursuant to this Agreement in compliance with all applicable laws and that Customer has provided all necessary notices and obtained all necessary consents related to the collection, use, and transfer of Customer Personal Data under this Agreement. Subject to the terms of this Agreement, ITA will process Customer Personal Data for the only purpose of performing the Services in accordance with this Agreement and as may be permitted under applicable law.
Should any data processing agreement in addition to this Agreement be required for the purpose of complying with applicable privacy or data protection legislation, either party may communicate to the other the requested additional provisions and the parties will negotiate them in good faith.
12. GENERAL
Subject to Customer’s prior written consent (e-mail is sufficient), ITA may identify Customer as its customer for the Services, including but not limited to using Customer’s company name and logo in ITA’s website, blog, social media pages, or any other marketing or promotional materials of any kind in accordance with Customer’s brand guideline if provided. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by this Agreement and all past due fees are paid in full. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise between the parties, and the parties will at all times be and remain independent contractors. Neither party will be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earthquake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control. If any of the provisions of this Agreement are determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provisions will be deemed to be severed and struck from this Agreement, while the remaining provision(s) of the Terms continue in full force and effect and are enforced to the extent possible, consistent with the stated intention of the parties. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. This Agreement (including all Order Forms) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter hereof. Except as expressly provided in this Agreement, no amendment, or modification of this Agreement will be effective unless in writing and signed by a duly authorized signatory of each party.